Opinion
Argued January 22, 1960
Decided March 31, 1960
Appeal from the County Court of Erie County JACOB A. LATONA, J.
William B. Mahoney and William Sims for Henry Flakes, appellant.
Harold P. Kelly and Leonard M. Sciolino for Walter T. Green, appellant.
Carman F. Ball, District Attorney ( Robert A. Burrell of counsel), for respondent.
Judgments of conviction affirmed. On this whole case, including the jury's refusal to recommend life imprisonment pursuant to section 1045-a of the Penal Law as to either of these defendants, it was not prejudicial error for the court to decline to charge the degrees of homicide. No opinion.
Concur: Chief Judge DESMOND and Judges DYE, FULD, VAN VOORHIS and FOSTER. Judges FROESSEL and BURKE dissent as to defendant Green only and vote to reverse and to grant a new trial as to defendant Green upon the ground that the evidence alluding to Green's prior status, which reflected a previous bad character, created prejudice against this defendant.